[Dry Law Question] Is copyright a form of "property"?

What is the name of your state? Florida.

Please excuse the dry nature of this subject.

I'm researching the extent to which copyright exists to benefit an author, and the extent to which it benefits the public. In this research, I have found a particular question to become more and more important.

There is an unfortunate tendency on the part of some to consider copyright as sharing substantial features of "actual" property and to gloss over crucial differences as a result.

I note that the Constitution allows Congress to create copyright laws to promote the progress of "science and the useful arts". I understand the purpose of this to be for the benefit of the public, not authors. According to many commentators, copyright exists as a bargain that government undertakes on behalf of the public. This does not sound like a form of property to me.

So my questions are:

1. Does copyright law come under a larger section of law which covers "normal" property?

2a. Is copyright a form of property, according to the Law?

2b. To what extent does the Law consider copyright as a form of property?

If this last question is asking too much, maybe someone could point me to relevant sections so I can check it out for myself.

Some guidance, however, would be greatly appreciated as I am not a lawyer!

Thanks,

Matt

do your own homework.

Your characterisations of me being a college student appear foolish as college students do not normally research the specifics of law.

I am not a lawyer, college student, law school graduate or likewise.

Your tolerance would be appreciated.

I'd be happy with just an answer to:

1. Does copyright law come under a larger section of law which covers "normal" property?

If answering any of the questions is asking too much, then just post "asking too much" and I'll leave.

Thanks.

1. Does copyright law come under a larger section of law which covers "normal" property?

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Yes.

2a. Is copyright a form of property, according to the Law?

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Yes. Copyrights are alienable, deviseable, etc., just like other forms of property.

2b. To what extent does the Law consider copyright as a form of property?

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It's property.

There is an unfortunate tendency on the part of some to consider copyright as sharing substantial features of "actual" property and to gloss over crucial differences as a result.

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Why is this an "unfortunate tendency?"

What are the "crucial differences" you are concerned with?

I'm researching the extent to which copyright exists to benefit an author, and the extent to which it benefits the public.

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If you think U.S. law tends to benefit the owner more than the public, you should check out copyright law in most other countries, especially European countries...

I note that the Constitution allows Congress to create copyright laws to promote the progress of "science and the useful arts". I understand the purpose of this to be for the benefit of the public, not authors. According to many commentators, copyright exists as a bargain that government undertakes on behalf of the public. This does not sound like a form of property to me.

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Why not? ALL property rights are the result of some governmental action. There are no inherent rights to own property, and there are no property rights that are absolute -- all property rights have limitations that are governmentally imposed.

The three main IP rights -- patents, copyrights and trademarks -- are grounded in the "promotion of science and the useful arts" clause of the constitution. They all, to a greater or lesser extent, promote in two ways:

1. By protecting the rights of the creator -- that is, giving the creator a "property" right in his creation -- we "incentivize" creativity. How many companies would spend big bucks on R&D if they knew that they couldn't recoup their investment dollars later? Why would anyone spend the time to write a screenplay if someone else could get a hold of it, photocopy it, then sell it to the studio as their own? Or for that matter, why would anyone spend $100 million on a movie that anyone could copy and rent themselves?

2. Patents especially, but also other IP rights, DO further science in another way -- if there were no property rights attached to an invention or a work, the only way to protect your investment would be to keep it secret. The bargain we strike is, we'll give you some protection for your invention, but you gotta let the public know about it. Other people can then build upon the work of others, without having to reinvent the wheel. Of course, this argument is stronger for patents than for copyrights, but that's why the protections given to patents are stronger than the protections for copyrights as well.

The bargain that government makes on behalf of the public is one that tries to get new ideas out into the public marketplace to others can benefit from them. It is not a bargain that gives the public free reign to use other's work without compensation.

And finally, EVERY governmental decision is a bargain made on behalf of the public -- the government works for us, remember?

Thanks for the extensive reply! Most unexpected.

First, let me acknowledge some of the points you've made. I recognize that government works for us and that what I termed "normal" property is the result of governmental action. In the jungle, there is no property.

I accept that copyrights & patents succeed in enabling companies to recoup development & production costs. I agree that giving an author & publishers a monopoly to publish a work means that the all the copies published can contribute to the wealth of the author; companies which made copies outside a contract made with an author would not benefit the author. This in turn acts as an incentive to authors to share their ideas with the public.

Now, I'll address some of your questions and other points. You wrote:

The bargain that government makes on behalf of the public is one that tries to get new ideas out into the public marketplace to others can benefit from them. It is not a bargain that gives the public free reign to use other's work without compensation.

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I accept that the bargain operates in the way described. There is another aspect to this bargain which I'd like to highlight.

As you know, the bargain trades off some public freedoms for the potential benefit of encouraging authors to share their ideas. If this bargain could be struck such that the public lose less freedoms than they do now, and authors are still encouraged to share their ideas through the means described above, then the current bargain and hence copyright laws do not best reflect the public interest.

I assume you accept the logic, at this point, even if you do not accept that change is required.

Before I continue, please note that I'm suggesting that copyright law could be different for different types of work, I'm not suggesting that the following example "proves" that copyright should be changed for all works.

Suppose that a recording company was able to collect royalties from commercial reproduction and performance. This money would be used to recover the costs of recording music. This company would not distribute, promote or publicize the musician.

Next, suppose that a publicity company/promoter promotes a musician's concert and takes part of the profits of the concert to cover publicity costs.

Next, suppose that CDs could be produced commercially and sold for profit, whilst giving part of the profit in royalties to the recording company and the musician.

In this scenario, it could be possible to allow non-commercial distribution of music for the public. This would both help to publicize the musician and no longer criminalize the public for sharing with their friends. It would still be illegal to publish and distribute music commercially without paying royalties.

So it could be possible to have a less restrictive copyright regime for (some) musical works and for the musicians to still benefit financially, the musicians to be motivated and the public to benefit from the music.

(note also that currently, a musician gets no money from a record company unless he/she is highly successful, as royalties go towards "paying off" any publicity the record company has spent on them)

Clearly, all this would have implications on the number of CDs being produced, the extent of publicity a musician receives, jobs in the current industry, and so forth... The question is, is the current copyright bargain the best deal for the public?

You asked,

Why is this an "unfortunate tendency?"

What are the "crucial differences" you are concerned with?

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I was thinking that the unfortunate tendency is to assume that copyright is as inalienable a right as "normal" property. This tends to make some people think that a copyright should last for ever, in a way which you might expect that you own a cup forever.

The crucial difference, now that I can only think of one in light of your comments, relates to the parameters that determine each law.

Now, I know less about property law than copyrights, but I (perhaps dangerously) assume that the parameters of property law are somewhat more fixed than for copyrights. I'm thinking that the yardstick of public benefit through promoting "science and the useful arts" is somewhat more susceptible to changes in technology than the yardstick of "normal" property. (whatever that is, because I don't know)

Also, perhaps the parameters are significantly different. Is there is less of a trade-off between public freedoms and individual benefits? Perhaps individual benefit reigns supreme for "normal" property, whereas public benefit reigns supreme for copyrights. Perhaps you can help?

Again, thanks for your comments.

Before I begin a reply, let me start off by saying that your essay would be better posted at Slashdot or Kuri5han or the EFF website. This site mostly concerns the law with the way it actually is, not the way maybe it should be...

With that editorial out of the way:

As you know, the bargain trades off some public freedoms for the potential benefit of encouraging authors to share their ideas. If this bargain could be struck such that the public lose less freedoms than they do now, and authors are still encouraged to share their ideas through the means described above, then the current bargain and hence copyright laws do not best reflect the public interest.

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The supreme court has ruled many, many times that the Congress has very broad discretion in how best to use the powers granted to them by the constitution. Congress does not always have to come up with the "best" or "least restrictive" solution -- it can decide for itself how best to implement policy.

Before I continue, please note that I'm suggesting that copyright law could be different for different types of work, I'm not suggesting that the following example "proves" that copyright should be changed for all works.

Suppose that a recording company was able to collect royalties from commercial reproduction and performance. This money would be used to recover the costs of recording music. This company would not distribute, promote or publicize the musician.

Next, suppose that a publicity company/promoter promotes a musician's concert and takes part of the profits of the concert to cover publicity costs.

Next, suppose that CDs could be produced commercially and sold for profit, whilst giving part of the profit in royalties to the recording company and the musician.

In this scenario, it could be possible to allow non-commercial distribution of music for the public. This would both help to publise the musician and no longer criminalize the public for sharing with their friends. It would still be illegal to publish and distribute music commercially without paying royalties.

So it could be possible to have a less restrictive copyright regime for (some) musical works and for the musicians to still benefit financially, the musicians to be motivated and the public to benefit from the music.

(note also that currently, a musician gets no money from a record company unless he/she is highly successful, as royalties go towards "paying off" any publicity the record company has spent on them)

Clearly, all this would have implications on the number of CDs being produced, the extent of publicity a musician receives, jobs in the current industry, and so forth... The question is, is the current copyright bargain the best deal for the public?

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Just so you know, this has NOTHING to do with copyright law -- this is asking for the recording industry to change its business model. Unless the recording industry is violating antitrust laws or something similar (and there are arguments that they might be, but not really strong ones), there is no real authority for anyone to tell the recording industry how to run their business. And it is a business -- they are not producing records out of the goodness of their hearts.

And if the artists feel they are getting ripped off, they should not sign such draconian agreements -- they should look to another way of getting their music out. With today's technology, there are other avenues. And if the consumers don't like the way things are done, they should stop buying music that is produced by the big labels. That's the way to implement change.

Lets say, just for the sake of argument, that there was no "record industry" and that each artist produced and sold their own CD's. Should they be able to charge whatever they want for the CD? Should they still be able to go after the file sharers, and those that don't respect their property? As I noted above, this isn't a copyright problem -- if the record company wasn't involved, the artist's rights wouldn't change. The only thing that would change is that there would be less enforcement of copyright laws, because most of the individual copyright holders wouldn't have the time or money to enforce all of their rights.

I was thinking that the unfortunate tendency is to assume that copyright is as inalienable a right as "normal" property. This tends to make some people think that a copyright should last for ever, in a way which you might expect that you own a cup forever.

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Well, the ONLY thing that limits the duration of any intellectual property right is the phrase "for a limited time" that is appended to the "advancement of science" clause.

Let's say that the constitution DIDN'T have a limitation on the duration of IP rights. Here's a question for you -- why SHOULDN'T IP rights last forever? Certainly if you own a cup, and someone else steals that cup, you can go get another one. But if someone steals your creative work and sells it as their own, you not only lose any "tangible" manifestation of the property, but you may very well also lose any intangibles that go along with it -- the fame and recognition, the ability to control how you want your work used and displayed, etc. In many ways, an argument could be made that there should be MORE protection for IP rather than less.

Now, I know less about property law than copyrights, but I (perhaps dangerously) assume that the parameters of property law are somewhat more fixed than for copyrights. I'm thinking that the yardstick of public benefit through promoting "science and the useful arts" is somewhat more susceptible to changes in technology than the yardstick of "normal" property. (whatever that is, because I don't know)

Also, perhaps the parameters are significantly different. Is there is less of a trade-off between public freedoms and individual benefits? Perhaps individual benefit reigns supreme for "normal" property, whereas public benefit reigns supreme for copyrights. Perhaps you can help?

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I'm still not sure what you mean here.

Anyway, one last point here: In Eldred v. Ashcroft, the Supreme's upheld the Copyright Extension Act, increasing the protection for copyrights to 95 years. While the late Sonny Bono, who authored this bill, may very well have been in the pockets of Disney, it is important to note that this increase in the duration of copyright protection was NECESSARY to bring us into compliance with the Berne Convention (which we are signatories of), and to put U.S. copyright holders on even footing with their colleagues in Europe.

I'll try to keep my questions to law as-it-is, sorry!

Would the Supreme Court rule that patent or copyright law should be changed if it could be shown that it currently hinders progress in science and the useful arts?

(This may well be the case for patents & software programs. Note that I'm not asking if the Supreme Court would rule that patent law for all kinds of work should be changed, maybe just some types.)

What is the yardstick used to determine "normal" property law?

(I mean, analogous to the "promotes progress of science and the useful arts". I don't know if there's such a thing as "normal" property, there may be many categories of property that I'm lumping together here)

Does individual benefit reigns supreme for other types of property?

(whereas public benefit reigns supreme for copyrights.)

I note your comments about changing industry but refrain from further discussion in order to be on-topic.

Thanks again for your interest.

Sorry - posted after only reading your first reply! More in a moment...

Oh brother.

Would the Supreme Court rule that patent or copyright law should be changed if it could be shown that it currently hinders progress in science and the useful arts?

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If you follow the cases in the last 20 years in the Supreme Court and the Circuits, you will see that the general trend is to expand IP rights, patents, copyrights and trademarks alike, rather than to curtail them in any way.

What is the yardstick used to determine "normal" property law?

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Congress' power under the "necessary and proper" clause, amongst many others.

Does individual benefit reigns supreme for other types of property?

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I'm still not sure what you mean.

Let's say that the constitution DIDN'T have a limitation on the duration of IP rights. Here's a question for you -- why SHOULDN'T IP rights last forever?

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Heh! Well, let me have a go at this one, with all the usual I'm-not-a-lawyer-but-anyway caveats...

In a sentence: Because public benefit derived from using the works without restriction would be harmed. The advancement of human knowledge would be impeded.

If works never became part of the public domain, innovation could be seriously impeded. In the case of a essential patent which never expired, a family who owned the patent could bleed industry continuously, or maybe worse - refuse to allow them to use the idea at all. This could hinder progress.

In England during the Industrial Revolution, James Watt invented various essential improvements to steam engines which he patented, and it was not until Marcus Trescothick came up with alternative-but-equally-essential improvements that were not patented that the steam engine really "hit-off". Anyway, this is off-topic again, I guess but regardless of whether you agree with the history, I hope I see the point.

But if someone steals your creative work and sells it as their own, you not only lose any "tangible" manifestation of the property, but you may very well also lose any intangibles that go along with it -- the fame and recognition, the ability to control how you want your work used and displayed, etc.

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I presume that, in this worst-case scenario, you would be entitled to legal recourse. There is at least some hope of recovering the loss, whereas in the case of indefinite IP rights, how do the public recover their losses without a change in law?

Eldred v. Ashcroft...

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Is that the case where they declared that any form of copyright licence is constitutional? Or have I misrepresented it somewhat? I'll have to dig out that Eben Moglen speech again...

If you follow the cases in the last 20 years in the Supreme Court and the Circuits, you will see that the general trend is to expand IP rights, patents, copyrights and trademarks alike, rather than to curtail them in any way.

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Yes, e.g. DMCA, the Mickey Mouse Extension Act, various computer related IP laws...

But, in your far-more-informed-opinion-than-mine opinion, would the Supreme Court rule that patent or copyright law should be changed if it could be shown that it currently hinders progress in science and the useful arts?

Congress' power under the "necessary and proper" clause, amongst many others

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Thanks - I'll look them up, now I know where to start. Any other clauses you could name so I could do likewise would be handy.

Me: Does individual benefit reigns supreme for other types of property?

You: I'm still not sure what you mean.

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I can only explain that by first explaining what I mean by "reign supreme" for copyrights. The Constitution only allows copyright laws to be created if they benefit the public by promoting the "progress of science and the useful arts." So in other words, copyright laws would not exist at all if a benefit to the public was not created. (Copyright laws benefit both the author and public, but would not exist if there was no benefit to the public)

Is the reverse true for other forms of property? i.e. Do property laws only exist because some kind of benefit to the individual is created?

I'm going to have to stop responding, because I have other things to do!

Constitution only allows copyright laws to be created if they benefit the public by promoting the "progress of science and the useful arts." So in other words, copyright laws would not exist at all if a benefit to the public was not created. (Copyright laws benefit both the author and public, but would not exist if there was no benefit to the public)

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This isn't right. In Section 8 of the Constitution, the "enumerated powers" section, cogress is given the express power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." However, Congress' powers are not limited to the enumerated powers. If the enumerated powers weren't there, or if IP wasn't among them, Congress could still create IP rights under other powers, perhaps "necessary and proper" or commerce clause, or wherever.

But, because IP falls under the enumerated powers, the Congress has MUCH more leeway to do what they think is right than they would if they had created IP rights under another congressional power.

So, it is probably better to look at the enumerated power not as a limit, but as a mandate. Eldred v. Aschroft upholds the very, very broad powers of Congress when they are acting under their enumerated powers.

And finally, there is no explicit "benefit to the public" in Section 8 clause 8. You can read that in to "promote the progress" if you want. There probably is caselaw here that defines what is really meant by this clause, but I don't know it off of the top of my head, and don't have time to do the research.

Here's an idea -- read Eldred v. Aschroft -- not a digest, or someone's take on it, read the actual Supreme Court decision, including the dissents, and I think you'll get a very good idea of what the current feeling is re: IP rights in the US, specifically copyrights, along with the scope of congressional power.